European Union: Recast Brussels Regulation – EU Regulation 1215/2012

Last Updated: 17 February 2015
Article by Marcia Perucca

New rules on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters apply in the EU from 10 January 2015. EU Regulation 1215/2012 (the recast Regulation) replaces EU Regulation 44/2001 (the Brussels I Regulation) for proceedings commenced on or after that date.

Changes to the lis pendens rules

One of the most heavily criticised aspects of the Brussels I Regulation related to the interpretation of Article 27, which provided that, where proceedings were brought first in one EU Member State, all other EU courts had to stay any proceedings involving the same parties and same cause of action (pending the decision of the first seised court on jurisdiction), even when proceedings were brought in breach of an exclusive jurisdiction clause. This encouraged "torpedo" actions whereby proceedings were commenced in one EU court to delay proceedings in the court expressly chosen by the parties in an exclusive jurisdiction clause.

Under the recast Regulation, where there are concurrent proceedings in the courts of two or more Member States, generally it is the court in which proceedings are commenced first which takes priority. However, the new rules give the court which is seised of the proceedings by virtue of an exclusive jurisdiction agreement the freedom to decide on its jurisdiction, and progress the litigation regardless of whether or not it is first seised; and any other EU court is required to stay its proceedings, effectively reversing the "first in time" rule in such cases.

Interface between the recast Regulation and non-EU matters

There are, broadly speaking, three aspects to such matters: 1) jurisdiction agreements involving non-EU courts or between non-EU parties; 2) the existence of non-EU proceedings; and 3) non-EU defendants.

Jurisdiction agreements

Article 25 of the recast Regulation provides that where the parties have agreed that a court of a Member State is to have jurisdiction, then that court shall have jurisdiction. Under Article 25, the parties' domicile is irrelevant, widening the scope of jurisdiction agreements caught by the recast Regulation.

If a non-EU court is specified in a jurisdiction clause, then such an agreement will still fall outside the Regulation.

The absence of an express provision in the recast Regulation allowing Member State courts to decline jurisdiction where parties have contractually agreed that the courts of a non-EU state have jurisdiction means that proceedings may continue in an EU court (for example, on the basis that the defendant is domiciled in that state) in breach of a jurisdiction clause.

Non-EU proceedings

Articles 33 and 34 provide EU courts with discretion to stay proceedings where the same or related matters are already before the courts of a non-EU state.

However, this discretion can only be exercised where the non-EU proceedings are first in time, and where jurisdiction in the EU proceedings is based on Articles 4 (domicile), 7, 8 and 9 (special jurisdiction). In addition, the judgment of the non-EU court must also be capable of recognition and enforcement in the EU Member State seised.

Non-EU domiciled defendants

Generally, the local law of the EU court seised will continue to apply to determine whether that court has jurisdiction over a defendant domiciled outside of the EU. Article 25 is one of the important exceptions, and an EU court will have jurisdiction over a defendant domiciled in a non-EU State, in cases of jurisdiction clauses in favour of EU courts.

However, key alternative grounds for jurisdiction remain restricted in scope to defendants domiciled in Member States. For example, Article 7(1), which provides that, in respect of contractual claims, the courts of the place of performance may have jurisdiction, and Article 7(2), which provides that claims in respect of torts may be brought in the courts of the place where the harmful event occurred or may occur.

The arbitration exception

Following the ECJ decision in Allianz SpA v West Tankers Inc. [2009] , the interface between the Brussels I Regulation and arbitration became problematic as the ECJ held that the English court could not issue an anti-suit injunction to protect a London arbitration agreement where proceedings had been commenced in Italy, and also held that the Italian court could determine issues relating to the applicability of the arbitration agreement.

The recast Regulation restates the arbitration exception and confirms that proceedings relating to arbitration fall outside of its scope. In addition, a new article provides that the Regulation shall not affect the application of the New York Convention and a new Recital 12 emphasises the free-standing nature of arbitration.

Recital 12 expressly excludes certain judgments on arbitration agreements from the scope of the Regulation, particularly those determining whether or not an arbitration agreement is null and void

On the other hand, Recital 12 also provides that "where a court of a Member State...has determined that an arbitration agreement is null and void...this should not preclude that court's judgment from being recognised or...enforced in accordance with this Regulation."

It follows that any court proceedings brought to support an arbitration (including enforcing or challenging an award and deciding the validity of an arbitration agreement) fall outside the scope of the Regulation, and the court which is not first seised can decide the matters in relation to this arbitration. On the other hand, other EU courts will remain permitted to reach their own decisions as to the validity of an arbitration agreement and, in case they decide that the agreement is not valid, proceed to issue a judgment on the merits. Whilst their decision on the validity of the arbitration agreement will not be enforceable under the recast Regulation, the judgment on the merits will. Importantly, the recast Regulation does not appear to authorise an EU court to grant an anti-suit injunction in relation to proceedings in another EU court brought in breach of an arbitration agreement.

As a result, there is still a risk of irreconcilable judgments on the same cause of action if a EU court reaches one conclusion on the merits (after ruling the arbitration agreement invalid) and an arbitral tribunal reaches a different conclusion elsewhere. Potentially, both the court judgment could be enforced (under the Regulation) and the arbitral tribunal decision (under the New York Convention). It would appear from the wording of the recast Regulation that the arbitral award would prevail as it provides that the New York Convention takes precedence, but, ultimately, it may be up to the ECJ to rule on this in the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Marcia Perucca
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.